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1

Malicious Legal Transplants

Mathias Siems Durham University

It is frequently assumed that legal transplants can help law makers in choosing the best

ideas from elsewhere in the world. However, this article suggests that there can also be

cases of ‘malicious legal transplants’. It explains why such transplants emerge and how

they may be prevented. This discussion fills a gap in the normative debate about legal

transplants: while it is valuable to identify good models, it is equally important to un-

derstand how the impact of malicious ideas can be prevented.

‘If you dance with the devil, the devil doesn’t change.

The devil changes you’ (8MM [film] 1999).

INTRODUCTION

It seems plausible to argue that learning from other countries can be valuable. For ex-

ample, when a country suffers from economic hardship, ethnic tensions or any other

problem, why not consider the experience from another country that has managed to

overcome this problem? It is therefore frequently suggested that countries can benefit

from legal transplants as far as they can identify legal rules that have already been suc-

cessfully ‘tested’ abroad.1

However, some commentators also take a sceptical view of legal transplants. For ex-

ample, it may be criticised that legal transplants often do not ‘fit’ well in the transplant

1 R Michaels ‘Make or Buy – A New Look at Legal Transplants’ in H Eidenmüller (ed) Regulatory Com-

petition in Contract Law and Dispute Resolution (Munich: Beck 2013) p 34; B Markesinis ‘Our Debt to

Europe: Past, Present and Future’ in B Markesinis (ed) The Coming Together of the Common Law and the

Civil Law (Oxford: Hart Publishing, 2000) p 61; K Zweigert and H Kötz An Introduction to Comparative

Law (3rd edn, Oxford: Clarendon 1998) p 17.

2

country due to differences in the socio-economic context.2 Other critiques focus on the

uneasy relationship between foreign rules and the domestic legal system and identify

this as a problem of ‘legal irritants’ – or even claim that legal transplants are ‘impossi-

ble’.3 Sometimes the criticism has also been directed against the substance of the trans-

planted rules, for example, due to political disagreements with certain positions of for-

eign law4 or due to the diffusion of inefficient ideas.5

This article introduces another type of legal transplants, namely those that can be

seen as ‘malicious’, for example, transplants that are harmful to the, previously intact,

social coexistence of different groups of society.6 The lack of research dealing with such

transplants may be explained by aim of mainstream comparative law to provide policy

recommendations and, thus, a bias for legal models perceived as good. However, as this

article will explain, there is also a need to study malicious legal transplants, notably in

order to understand whether and how it may possible to prevent them.

The structure of the argument is as follows: Section 1 sets the scene of the proposed

new topic of malicious legal transplants. It provides examples that illustrate the meaning

and scope of this concept. It also outlines the debate about legal transplants and diffu-

sion, given that some of the previous lines of research can be helpful in the understand-

ing of malicious legal transplants. On this basis, Section 2 develops an evaluative

framework for malicious legal transplants. It identifies the main determinants for the

occurrence of malicious legal transplants, leading to suggestions on how, at least in

some circumstances, it may be possible to prevent them. Section 3 concludes with gen-

eral reflections about the research on legal transplants as it identifies either good models

or, indeed, malicious ones.

2 A point frequently raised about legal systems in transition: eg, A Donaggio ‘Limitations of Legal Trans-

plants and Convergence to Corporate Governance Practices in Emerging Markets: The Brazilian Case’ in

S Boubaker amd DK Nguyen (eds) Corporate Governance in Emerging Markets (Berlin: Springer 2014)

pp 465-484; J Jupp ‘Legal Transplants as Tools for Post-Conflict Criminal Law Reform: Justification and

Evaluation’ (2014) 3 Cambridge Journal of International and Comparative Law 381. 3 G Teubner ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Diver-

gences’ (1998) 61 Modern Law Review 11; P Legrand ‘The Impossibility of Legal Transplants’ (1997) 4

Maastricht Journal of European and Comparative Law 111. 4 See eg the debate in the US: OJ Benvenuto ‘Reevaluating the Debate Surrounding the Supreme Court’s

Use of Foreign Precedent’ (2006) 38 Fordham Law Review 2596. 5 E Carolan ‘Diffusing Bad Ideas: What the Migration of the Separation of Powers Means for Compara-

tive Constitutionalism and Constitutional Transplants’, in S Farran, J Gallen and C Rautenbach (eds) The

Diffusion of Law (Farnham: Ashgate 2015) pp 213-233. 6 For details and examples of this category see Section 1 (a), below

3

1. SETTING THE SCENE: MALICIOUS AND NON-MALICIOUS LEGAL TRANS-

PLANTS

The notion of ‘malicious legal transplants’ is a new one, but it can also be related to

other types of legal transplants. Thus, this section discusses, first, how this new notion

can be understood and, secondly, how it is related to previous research which deals with

(mainly) non-malicious forms of legal transplants and policy diffusion.

(a) The notion of ‘malicious legal transplants’

This article does not suggest a closed definition of ‘malicious legal transplants’. Yet, as

a starting point, it is helpful to explain, tentatively, how ‘legal transplants’ in general

and ‘malicious legal transplants’ in particular may be defined. The subsequent text in-

troduces three examples which will be seen as core cases of ‘malicious legal trans-

plants’. Finally, it is contemplated which further cases could be identified.

(i) A tentative definition of ‘(malicious) legal transplants’

Alan Watson is often seen as the founding father of the concept of legal transplants.7

Watson’s view is shaped by being a legal historian and Roman lawyer, in particular his

insight that the private law of many countries is significantly based on the reception of

Roman law. Here Watson found that ‘borrowing, even mindless, is the name of the legal

game’.8 Such borrowing is not limited to legal rules, since the transplant of Roman law

also concerned legal institutions and structures.9 Thus, according to Watson, it shows

that rules and concepts ‘can survive without any close connection to any particular peo-

ple, any particular period of time or any particular place’.10

7 A Watson Legal Transplants: An Approach to Comparative Law (2nd edn, Athens: University of Geor-

gia Press 1993); the first edition was from 1971. But see also JW Cairns ‘Watson, Walton and the History

of Legal Transplants’ (2013) 41 Georgia Journal of International and Comparative Law 637. 8 A Watson Law, Society, Reality (Lake Mary, FL: Vandeplas 2007), p 5. 9 A Watson ‘The Importance of “Nutshells”’ (1994) 42 American Journal of Comparative Law 1, 2. 10 A Watson ‘Legal Transplants and Law Reform’ (1996) 92 Law Quarterly Review 79, 81.

4

In the contemporary literature on legal transplants it is also said that the object of a

legal transplant can be diverse. Often it is the (mere) text of a particular statute law,11

but recently there have also been extensive discussions about citations to foreign judg-

ments in court decisions.12 Beyond legal texts, today, the main aim is often to transfer

particular ideas or policies, for example, the idea of having codified state law or spread-

ing the idea of the Western model of human rights to other parts of the world.13 Going

further, elements related to a country’s legal culture can also be transplanted: though

these elements – such as legal education, methods, and mentalities – cannot be changed

overnight, most comparative lawyers agree that, here too, foreign models can be used.14

In addition, there is diversity as regards the circumstances that can lead to a trans-

plant. In the literature, frequent examples concern the influence of Western laws in co-

lonial times and the copying of modern business laws across the world more recently.15

This also shows that legal transplants can be of an involuntary or a voluntary nature.

Sometimes the process leading to a legal transplant is less deliberate and more fluid

whereby a common language and legal culture influence intellectual exchange:16 thus,

here, terms such as ‘legal circulation’, ‘cross-fertilisation’, ‘diffusion’ or ‘migration’17

may be used in order to describe this type of legal transplant.

For ‘malicious legal transplants’ it follows that they can also concern any legal object

and be either of an involuntary or a voluntary nature. In addition, in order to be ‘mali-

cious’ there needs to be intention to do harm. Thus, ‘malicious legal transplants’ have

an objective element (‘harm’), for example, where one group of society imposes its so-

cial norms on another one without need (as will be shown in the next section). In addi-

11 So, this refers to ‘legislative comparative law’, see Zweigert and Kötz, above n 1, p 51. 12 See eg M Gelter and M Siems ‘Citations to Foreign Courts – Illegitimate and Superfluous, or Unavoid-

able? Evidence from Europe’ (2014) 62 American Journal of Comparative Law 35. 13 See eg J-L Halpérin ‘The Concept of Law: A Western Transplant?’ (2010) 10 Theoretical Inquiries in

Law 333; BA Simmons Mobilizing Human Rights: International Law in Domestic Politics (Cambridge:

Cambridge University Press 2009). 14 For different forms and objects of legal transplants see eg W Twining General Jurisprudence: Under-

standing Law from a Global Perspective (Cambridge: Cambridge University Press 2009) p 279. 15 Summary in M Siems Comparative Law (Cambridge: Cambridge University Press 2014) pp 202-213.

See also Section 1 (b) (i), below. 16 For a specific example: H MacQueen ‘Scotland’ in Jan M Smits (ed) Elgar Encyclopaedia of Com-

parative Law (2nd edn, Cheltenham: Edward Elgar 2012) p 791. 17 For the different terms see eg V Perju ‘Constitutional Transplants, Borrowing, and Migrations’ in M

Rosenfeld and A Sajo (eds) The Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford

University Press 2012) pp 1306-1308.

5

tion, the subjective element means at least one actor of the transplant process recognises

that it can use the transplant in such a manner. Thus, this is different from a situation

where a legal transplant merely does not work well due to some kind of unintended con-

sequence. This specific character of ‘malicious legal transplants’ can also be seen in the

following three examples.

(ii) Examples of ‘malicious legal transplants’

In many countries of the world multiple ethnicities live peacefully together. But

throughout human history there have also been periods of racially-motivated laws with

a malicious effect. In some instances, those laws were a product of legal transplants. For

example, it has been suggested – but without certainty – that the US racial segregation

laws of the 19th century seemed to have influenced the laws of racial identification and

purity in Nazi Germany.18 With more confidence it can be said that the Nazi laws influ-

enced the laws of Mussolini’s Italy. There is some scholarly disagreement about the fac-

tors accounting for the Italian racial politics under Fascism. Some scholars emphasise

internal developments, for example, referring to the impact of rules about the relation-

ship between Italians and the local population in the Italian colonies as well as the fact

that Italy had a more cultural (as opposed to purely racial) definition of Jewishness.19

But scholars often also make reference to the German influence on the Leggi Razziali of

1938:

‘Italian laws were more or less an imitation of Nazi Germany. In 1937, Musso-

lini “saw the political usefulness of anti-Semitism, and his views developed rap-

idly in 1938 as he moved closer to a German alliance”. The introduction of a

body of legislation against the Jews was ‘his own spontaneous decision to show

solidarity with Nazism.” His cynicism toward a move conceived as “merely tac-

18 B Ezzell ‘Laws of Racial Identification and Racial Purity in Nazi Germany and the United States: Did

Jim Crow Write the Laws That Spawned the Holocaust?’ (2002) 30 Southern University Law Review 1.

For further details on the US history see RF Moran, ‘Love with a Proper Stranger: What Anti-

Miscegenation Laws Can Tell Us about the Meaning of Race, Sex, and Marriage’ (2004) 32 Hofstra Law

Review 1663. 19 MA Livingston The Fascists and the Jews of Italy: Mussolini’s Race Laws, 1938-1943 (Cambridge:

Cambridge University Press 2014); JD Zimmerman (ed) Jews in Italy under Fascist and Nazi Rule, 1922–

1945 (Cambridge: Cambridge University Press 2005); O De Napoli ‘The Origin of the Racist Laws under

Fascism: A Problem of Historiography’ (2012) 17 Journal of Modern Italian Studies 106. Those views

were also promoted through the Fascist journal La difesa della razza.

6

tical” was unmistakable. Mussolini was not a long-time anti-Semite nor was he

an anti-Semite by conviction, but rather was driven by cynical considerations of

opportunism: “though he personally thought the idea of racial purity was non-

sense, it was politically expedient that others should think differently.”’20

Another example concerns the spread of religious laws that do not simply codify certain

practices for believers, but impose those on members of other religious and non-

religious groups. Saudi Arabia, for example, bans non-Muslim places of worship as well

as the importation of non-Muslim religious materials and ‘haram’ food such as pork, all

monitored by a religious police force. In recent decades some of those religious laws

have spread to other countries – directly or more indirectly through the funding of

Wahhabi educational, charitable and religious institutions. The international impact can

then be seen, for example, in restrictions to the legal profession to non-Muslims in

northern Nigeria21 and the possible application of a strict Sharia law to non-Muslims in

Brunei22 and in the Indonesian province of Aceh.23 The Maldives also provides a specif-

ic example of such changes:

‘(S)ince Islam was introduced in the Maldives in the 12th century, religious

practices in the country have been moderate. Yet (…) in 1994, the Protection of

Religious Unity Act was passed, which restricted the freedom to practice any

other religion besides Islam. In 1996, Gayoom constituted the Supreme Council

for Islamic Affairs (which was renamed the Ministry of Islamic Affairs in 2008)

charged with overseeing religious affairs in the country. This body of clerics

pressured the government to carry out moral and cultural policing of alleged

“anti-Islamic activities.” In 2008, it asked the police to ban night clubs and dis-

cotheques for New Year’s Eve celebrations, saying that they were contrary to Is-

lam. In May 2010 (…) new legislation prohibited “talking about religions other

20 De Napoli, ibid, p 117 (discussion the position of Denis Mack Smith and other historians). 21 P Marshall (ed) The Talibanization of Nigeria: Sharia Law and Religious Freedom (Washington, DC:

Freedom House, 2002). 22 Deutsche Welle, ‘Religion Sharia in Brunei: The Sultan’s New Laws’ (10 May 2014), available at

http://www.dw.com/en/sharia-in-brunei-the-sultans-new-laws/a-17627008. 23 C Chaplin ‘Imagining the Land of the Two Holy Mosques: The Social and Doctrinal Importance of

Saudi Arabia in Indonesian Salafi Discourse’ (2014) 7 Austrian Journal of South-East Asian Studies 217;

A Kovacs ‘Saudi Arabia Exporting Salafi Education and Radicalizing Indonesia’s Muslims’ (2014) GIGA

Focus, available at www.giga-hamburg.de/en/system/files/publications/gf_international_1407.pdf.

7

than Islam in Maldives, and propagating such religions,” as well as reinforcing

that it is illegal “to use any kind of medium to propagate any religion other than

Islam” (….)’.24

Those new laws were, to a large extent, the result of foreign influence: from Saudi Ara-

bia, but also through Maldivian students attending madrasas in Pakistan.25

The third example is about the criminalisation of homosexual acts through British

colonial law. In pre-colonial India – as well as in most other colonies – there may have

been social rejection, or perhaps a small fine, but no criminal sanctions for homosexual

acts.26 This changed with section 377 of the Indian Penal Code of 1860, dealing with the

‘carnal intercourse against the order of nature’ and codifying the British ‘buggery

law’.27 This provision was then also adopted by other British colonies, with Malaysia

and Singapore adding a further section 377A that also criminalised homosexual acts not

covered by section 377. Thus, as a result,

‘19th century codifications of British criminal law (…) criminal prohibitions of

homosexual acts came into force in all “common law” jurisdictions. The lead

role in this process was played by the Indian Penal Code, a one-size-fits-all

model code. This occurred in a period in which parallel prohibitions were elimi-

nated in the other major European colonial powers (...)’.28

One or both of these provisions have been retained in many of the former British colo-

nies.29 Since the actual behaviour covered by these provisions can often not be proven,

this can be interpreted as a general means to discriminate against homosexuals.30

24 A Roul ‘The Threat from Rising Extremism in the Maldives’ (2013) 6/3 CTC Sentinel 24-28 (footnotes

omitted). 25 Ibid. See also A Singh Ningthoujam, ‘Maldives is No Longer a “Paradise”’ (2 April 2015), available at

www.ict.org.il/Article/1372/Maldives-is-No-Longer-a-Paradise. 26 See R Vanita and S Kidwai (eds) Same-Sex Love in India, Readings in Indian Literature (New York:

Palgrave 2001) p 25. 27 D Sanders ‘377 and the Unnatural Afterlife of British Colonialism in Asia’ (2009) 4 Asian Journal of

Comparative Law 1. 28 Ibid, pp 14-15. 29 See Human Rights Watch ‘This Alien Legacy: The Origins of “Sodomy” Laws in British Colonial-

ism’ in C Lennox and M Waites (eds) Human Rights, Sexual Orientation and Gender Identity in the

Commonwealth: Struggles for Decriminalisation and Change (London: Institute of Commonwealth Stud-

ies, 2013) pp 83-123. 30 Ibid, p 110.

8

(iii) Common ground and possible extensions

The three examples have in common that the prior position of the transplant country

was receptive towards differences in race, religion and sexual orientation. This situation

is different from the type of legal transplants, more frequently discussed in the litera-

ture, where the traditional culture of the transplant country had been prejudiced towards

the behaviour that the transplant aimed to introduce; for example, transplants that aimed

to liberalise family law in terms of allowing no fault divorce or introducing same-sex

unions.31

More specifically, the ‘maliciousness’ of the legal transplant in the three examples

follows from the change of the status quo to a situation where one group of society im-

poses its social norms on another one without need. While societies require some com-

mon rules, it is not justifiable to intervene in religious, sexual and other practices that do

not pose any harm to other groups of society.32 Such transplants are therefore particular-

ly harmful for diverse societies where law needs to facilitate the coexistence of different

groups. Thus, in these situations the problem is not simply the underlying idea but the

fact that the legal change is designed with malicious intentions in mind.

Since ‘malicious legal transplants’ are a new concept, it is, however, not suggested

that there may not also be other categories of such transplants. A first of those may con-

cern examples where the policy orientation of the imported law is rejected. For instance,

it may be argued that, in recent decades, we have observed how a ‘neoliberal’ Anglo-

Saxon business law has, maliciously, spread to social-democratic countries in Europe.33

Or, it may be argued that it was ‘liberal’ European ideas, such a system of national

health care, that have ‘infected’ US law.34 Or, within Europe, perhaps the case law of

the European Court of Human Rights has been harmful to the UK legal system in re-

31 See eg L Friedman ‘Some Comments on Cotterrell and Legal Transplants’ in D Nelken and J Feest

(eds) Adapting Legal Culture (Oxford: Hart) pp 93-98, with ‘no fault divorce’ as an example; MF Mos-

cati Pasolini’s Italian Premonitions: Same-Sex Unions and the Law in Comparative Perspective (London:

Wildy, Simmonds and Hill 2014). 32 MC Nussbaum ‘“Equal Respect for Conscience”: Roger Williams on the Moral Basis of Civil Peace’

(2007) 15 Harvard Review of Philosophy 4, 14 (with reference to Locke). 33 For the debate see eg G Schnyder and M Siems ‘The Ordoliberal Variety of Neoliberalism’ in S

Konzelmann and M Fovargue-Davies (eds) The Faces of Liberal Capitalism: Banking Systems in Crisis

(London: Routledge 2013) pp 250-268. 34 Eg, S Gregg Becoming Europe: Economic Decline, Culture, and How America Can Avoid a European

Future (New York: Encounter Books 2013).

9

quiring it to provide voting rights to prisoners and in restricting the ability to deport for-

eign criminals to their home countries.35

A second category would be more specific about the effect in the transplant country.

In the discourse about the relationship between law and development, it is often argued

that the influence of Western legal ideas has been harmful to countries of the developing

worlds, for example, because ‘Western laws’ that protect property rights may be coun-

terproductive when corruption and income disparity mean that these laws are mainly

used by the current elites to the detriment of the poor.36 Such reasoning can also be re-

lated to the frequent general view that much of the Western influence in the world has

been harmful, characterising it as ‘a tale of cross-contamination, the spread of bad ide-

as’.37

But these two further categories can also be seen as problematic since not everyone

may regard these transplants as malicious. With respect to differences in policy orienta-

tion, there is bound to be disagreement about the value and precise balance of such

goals. It is also not always clear whether the lack of a transplant’s ‘fit’ is really some-

thing negative since some transplants have the explicit aim to stimulate changes in the

society in question.38 And, more generally, as legal philosophy and jurisprudence dis-

cuss various normative theories of justice and injustice,39 it is clear that there cannot be

full agreement about a positive or negative assessment of a particular transplant.

For the purposes of this article, however, this ‘fuzziness’ is not a problem. It is only

necessary that normative positions are possible. Thus, for anyone who does not sub-

scribe to a radical relativist position, there will be situations where particular rules are

seen as not only technically flawed but ‘malicious’ – and there is therefore the need to

understand such cases in more detail.

35 Eg, M Pinto-Duschinsky Bringing Rights. Back Home. Making human rights compatible with parlia-

mentary democracy in the UK (London: Policy Exchange 2011). 36 Eg, U Mattei and L Nader Plunder: When the Rule of Law is Illegal (Oxford: Wiley-Blackwell 2008). 37 I Buruma and A Margalit Occidentalism: The West in the Eyes of its Enemies (New York: Penguin

2004) p 149. 38 D Nelken ‘Comparatists and Transferability’, in P Legrand and R Munday (eds) Comparative Legal

Studies: Traditions and Transitions (Cambridge: Cambridge University Press 2003) p 456 (‘geared to

fitting an imagined future’). 39 See eg MJ Sandel (ed) Justice: A Reader (New York: Oxford University Press, 2007); E Heinze The

Concept of Injustice (Abingdon: Routledge, 2013).

10

(b) Research context: legal transplants and diffusion of ideas

While the concept of ‘malicious legal transplants’ is a new one, it can also be related to

previous research in law and other disciplines. This second part of this section will

therefore outline the positive and the normative research about legal transplants in com-

parative law as well as the research on the diffusion of ideas and policies, thus setting

the scene for the evaluative framework of the subsequent sections.

(i) Positive research in comparative law

The beginning of this article mentioned that legal transplants often aim to use ideas that

have been successfully ‘tested’ abroad. This is indeed a frequently mentioned reason

why legal transplants are said to occur.40 Thus, here, transplants are driven by the trans-

plant country which deliberately adopts a good legal rule (or legal institution) from an-

other country. In addition, it has the benefit that copying a foreign law saves law-

makers the costs of drafting an original law on their own.41

More subjective are transplants that reflect the internal preferences and interests of

the transplant country. For example, as law-makers cannot evaluate the potential bene-

fits of all countries of the world, they will choose a foreign model that the general pub-

lic perceives to be the most legitimate one. It is also likely that interest groups of the

transplant country will shape the choice of the model that is most favourable to them.42

With respect to the aspired benefits for the origin country, a country can, for exam-

ple, benefit from its laws being transplanted, since a familiar legal system makes it easi-

er for its firms to do business with firms from the transplant country (i.e. it reduces

transaction costs). If other countries follow the values of the origin countries, the latter

benefits from the ‘prestige’ of having an influential legal system – and this can also

have tangible benefits: for instance, foreign lawyers who want to buy literature about

this legal system, or pay to study at its universities.43

40 For the following see Siems, above n 15, pp 191-195 (with further references). 41 JM Miller ‘A Typology of Legal Transplants: Using Sociology, Legal History, and Argentine Exam-

ples to Explain the Transplant Process’ (2003) 51 American Journal of Comparative Law 839 calls those

‘cost-saving transplants’ (p 845). 42 Miller ibid, as ‘legitimacy-generating’ (p 854) and ‘entrepreneurial’ transplants (p 849). 43 See eg the recent ‘battle of brochures’ discussed in H Kötz ‘The Jurisdiction of Choice: England and

Wales or Germany?’ (2010) 18 European Review of Private Law 1243.

11

Another crucial consideration is the power relationship between the two countries.

From the perspective of the transplant country, transplants can be ordered by the extent

to which it still enjoys de facto sovereignty regarding the transplant decision, distin-

guishing between imposition, transnational commitment, external pressure, prestige

generated, and voluntary adoption.44 From the perspective of the origin country, the

transplant can be a result of soft power or forms of ‘legal imposition’ or even ‘legal im-

perialism’.45 These forms of transplants can be related to examples from history, such as

the colonial influence of Western powers. As a form of ‘neo-imperialism’ they are also

said to be a common feature of many developments today, for example, through influ-

ence of the World Bank’s Doing Business Reports on the business laws of transition

and developing countries.46

All of these latter considerations show that even in the current legal research it is not

seen as a matter of course that transplants are simply the result of a search for ‘better

law’. These considerations will become relevant again when this article turns to the rea-

sons why, sometimes, even malicious legal transplants occur.47

(ii) Normative research in comparative law

In the normative research about legal transplants, a helpful division is between support-

ers and sceptics (while intermediate positions are also widespread).48 The supporters

argue that legal transplants can help countries to address major economic and social

problems. Thus, we are told that comparative lawyers should aim to ‘increase intellectu-

al interaction and borrowings’, denouncing opposition as ‘parochialism’.49 The practi-

cality of transplants is not doubted since most, if not all, legal systems have managed to

incorporate ideas from various parts of the world: in other words, ‘no legal system is

44 M Cohn ‘Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review

of the Administration in the United Kingdom’ (2010) 58 American Journal of Comparative Law 583, 591

(in addition referring to negative fertilisation and novation). 45 See eg U Mattei ‘A Theory of Imperial Law: A Study of U.S. Hegemony and the Latin Resistance’

(2003) 10 Indiana Journal of Global Legal Studies 383. 46 For examples see Siems, above n 15, pp 183-186, 207-211, 277-299. 47 Section 2 (a), below. 48 For the intermediate position see Siems, above n 15, pp 197-200. 49 Markesinis, above n 1, p 49; E Buscaglia and W Ratli Law and Economics in Developing Countries

(Stanford, CA: Hoover Institution, 2000) p 31.

12

entirely a prisoner of its own past traditions’.50 Such a position is also supported by

economists and development organisations as they often regard it as crucial to imple-

ment successful legal models from other countries in order to stimulate a country’s de-

velopment.51

The sceptics object that, in practice, legal transplants are often unfavourable to the

incoming legal system. Two variants of such a view can be distinguished. On the one

hand, the criticism can refer to the relationship between the transplanted and the previ-

ous law. Thus, it may be argued that foreign ideas have ‘polluting or disrupting effects’

on the domestic legal order52 and that, therefore, legal transplants should really be called

‘legal irritants’.53 On the other hand, the negative effect may refer to the relationship

between the transplanted law and the social, economic, cultural and political environ-

ment. Taking the view that there are complementarities between the law, society, cul-

ture, and political process of each country,54 it follows that one should not simply copy

laws from abroad. Thus, according to this view, legal transplants often fail, for instance,

due to lack of enforcement, side-lining, or general unsuitability.55

Sometimes the criticism is also directed against the more general idea of the trans-

planted law, thus shifting the criticism closer to the notion of transplants that some may

regards as ‘malicious’. A prominent example concerns human rights. According to ‘cul-

tural relativists’, the Western origins of human rights mean that they should not be im-

posed on other cultures.56 For example, it is argued, that formal legal rights may not be

appropriate for societies in Africa and the Middle East, which are based on kinship and

other group-centred social structures, and where law and religion are not strictly sepa-

50 TT Arvind ‘The ‘Transplant Effect’ in Harmonization’ (2010) 59 International and Comparative Law

Quarterly 65, 81. 51 For a summary see MJ Trebilcock and MM Prado Advanced Introduction to Law and Development

(Cheltenham: Edward Elgar 2014) pp 45-55. 52 HC Gutteridge Comparative Law: An Introduction to the Comparative Method of Legal Study and Re-

search (Cambridge: Cambridge University Press 1946) p 25. 53 Teubner, above n 3. 54 See eg B Ahlering and S Deakin ‘Labour Regulation, Corporate Governance and Legal Origin: A Case

of Institutional Complementarity? (2007) 41 Law & Society Review 865. 55 NHD Foster, ‘Comparative Commercial Law: Rules or Context?’ in E Örücü and D Nelken (eds) Com-

parative Law: A Handbook (Oxford, Hart Publishing, 2007) pp 273-274. See also D Berkowitz, K Pistor

and J-F Richard ‘The Transplant Effect’ (2003) 51 American Journal of Comparative Law 163. 56 For a summary of the discussion see P Alston and R Goodman International Human Rights (Oxford:

Oxford University Press 2012) pp 531-557.

13

rated. It has also been said that ‘Asian values’ may be irreconcilable with human rights,

for instance, referring to the collectivist and communitarian principles in Asian culture.

(iii) Research on diffusion of ideas and policies

At a general level, the legal-transplant literature can be related to research dealing with

the evolution of ideas and other cultural ‘units’. Such research can be of a historical na-

ture,57 but the growing field of ‘futures studies’ also explores possible development

trends in the coming decades and centuries.58 Theories of ‘cultural selection’ often pur-

sue a more theoretical angle, using evolutionary concepts.59 Related to such research is

also the theory of ‘memetics’ which analyses how far units of culture (‘memes’) evolve

similar to Darwinian principles.60

More specifically, legal transplants can be linked to research on the diffusion of in-

novations. A book by Everett Rogers is often cited as the work that most clearly ex-

plains what accounts for the adoption of an innovative idea or technology. According to

Rogers, an innovation succeeds if it (i) has a relative advantage over existing ideas or

technologies, (ii) is compatible with the adopter’s preconditions, (iii) has a low level of

complexity, (iv) allows a system of trial and error, and (v) has observable benefits.61 But

it is also clear that these five factors are not the only possible determinants for the adop-

tion and implementation of particular innovations. For example, for complex phenome-

na, it can be important to break down innovations into manageable parts and adopt them

in an incremental basis.62

57 The main journal is the Journal of the History of Ideas. 58 See eg the main associations: the World Future Society (www.wfs.org), the World Futures Studies Or-

ganisation (www.wfsf.org), and the Association of Professional Futurists (www.profuturists.org). 59 GKD Crozier ‘Reconsidering Cultural Selection Theory’ (2008) 59 British Journal for the Philosophy

of Science 455. 60 R Dawkins The Selfish Gene (2nd edn, Oxford: Oxford University Press 1989). For an application to

law see S Deakin ‘Evolution for Our Time: A Theory of Legal Memetics’ (2002) 55 Current Legal Prob-

lems 1. 61 E Rogers Diffusion of Innovations (5th ed, New York: Free Press, 2003). 62 See T Greenhalgh and others How to Spread Good Ideas - A systematic review of the literature on dif-

fusion, dissemination and sustainability of innovations in health service delivery and organisation (Re-

port for the National Co-ordinating Centre for NHS Service Delivery and Organisation R&D, April 2004)

pp 15, 142. See also W Twining ‘Social Science and Diffusion of Law’ (2005) 32 Journal of Law and

Society 203, 217-220 (sceptical about the suitability of Rogers’ diffusion theory).

14

In the political science literature, a similar discussion concerns the conditions for the

transferability of policies. It is said that the countries involved need to be ideologically

and psychologically compatible. Thus, there needs to be agreement on basic policy ob-

jectives and values (for example, whether and how social welfare is provided) and to

consider that resistance against a policy can arise both at the level of the government

and of the general public.63 Political science has also been interested in different mecha-

nisms for policy transfers: the main emphasis has been on processes of learning and

mimicking but it has also analysed coercive and competitive mechanisms.64

These lines of research have their main interest in the diffusion of ‘good’ ideas (in-

cluding good technologies and policies). By contrast, a book by the late French sociolo-

gist Raymond Boudon has, in translation, the title ‘ideology: the origin and diffusion of

mistaken ideas’.65 Boudon takes the position that these mistaken ideas are not due the

irrationality of the actors but, rather, that rational actors follow these ideas as ‘black

boxes’ due to reasons of ‘social position, cultural disposition, and historical situation’.66

For his main examples Boudon refers to mainstream theories of economic development

but also the dependency theory. Similar is a book by the heterodox economists John

Quiggin on ‘zombie economics’. Quiggin argues that many ‘dead economic ideas still

walk among us’, for example, referring to the notion about the efficiency of capital

markets after the global financial crisis of 2008.67

A problem with these two books may be that readers who do not share Boudon’s and

Quiggin’s criticism of these theories may well find that their core cases are not actually

negative ones. However, it is also possible to present clearer ‘malicious’ examples,

some of them related to the legal examples of the previous section. While an example

from a history review discusses the ‘spread of intolerance, absolutism, and racism in

early modern Europe’,68 the main cases derive from the 20th and early 21st century. For

63 For a summary see L Hantrais International Comparative Research: theory, methods and practice (Ba-

singstoke: Palgrave 2009) pp 133-139. 64 JL Campbell ‘Institutional Reproduction and Change’ in G Morgan and others (eds) The Oxford Hand-

book of Comparative Institutional Analysis (Oxford: Oxford University Press 2010) pp 97-106. 65 R Boudon L’idéologie ou L’origine des idées reçues (Paris: Fayard 1986). 66 As phrased in the review by J Herf (1989) 18 Contemporary Sociology 291. 67 J Quiggin Zombie Economics: How Dead Ideas Still Walk among Us (Princeton, NJ: Princeton Univer-

sity Press, 2010). 68 GV Scammell ‘Essay and Reflection: On the Discovery of the Americas and the Spread of Intolerance,

Absolutism, and Racism in Early Modern Europe’ (1991) 13 The International History Review 502.

15

instance, reference can be made to publications that deal with similarities between Na-

zism and Stalinism,69 the spread of the demonisation of China in Western media,70 the

spread of the ‘genocide ideology’ in Rwanda and neighbouring African countries,71 as

well as the spread of ‘Al-Qaedaism’ and ‘Islamic fascism’.72 This latter example can

also be related to another general field of discussion, namely whether the internet, nota-

bly social networks such as Twitter, are really beneficial – in the sense of the ‘wisdom

of crowds’73 – or whether it is rather the case that they strengthen previously isolated

extremist positions.74

2. EVALUATIVE FRAMEWORK FOR MALICIOUS LEGAL TRANSPLANTS

On the basis of the considerations of the previous section, it is now possible to develop

a conceptual framework for malicious legal transplants. For this purpose, the following

will distinguish between the object of the transplant, the transplant process and the dy-

namics in the transplant country in such scenarios. As Table 1 illustrates, these topics

are then applied to the questions about the determinants for the occurrence of malicious

legal transplants in the first subsection, and to the means with which malicious legal

transplants may be prevented in the second one.

69 TD Snyder Bloodlands: Europe Between Hitler and Stalin (New York: Basic Books 2010). 70 R Mayer Serial Fu Manchu: The Chinese Supervillain and the Spread of Yellow Peril Ideology (Phila-

delphia: Temple University Press 2013). 71 F Rusagara ‘The Spread of “Genocide Ideology” within the Great Lakes Region: Challenges for Rwan-

da’ in M Campioni and P Noack (eds) Rwanda Fast Forward (New York: Palgrave Macmillan 2012) pp

213-227. 72 K Ramakrishna ‘Democratisation of Hate: The Spread of Al-Qaedaism’, RSIS Commentaries 2014 No

17, available at www.rsis.edu.sg/wp-content/uploads/2014/07/CO04017.pdf; R Schulze ‘Islamofascism:

Four Avenues to the Use of an Epithet’ (2012) 52 Die Welt des Islams 290. 73 J Surowiecki The Wisdom of Crowds (New York: Doubleday 2004). 74 Cf O Khazan ‘The Stupidity of the Crowd’ (29 July 2013), available at

www.theatlantic.com/health/archive/2013/07/the-stupidity-of-the-crowd/278188/.

16

Table 1: Conceptual framework and overview of main topics

Determinants for the occur-

rence of malicious legal trans-

plants (a below)

How malicious legal trans-

plants may be prevented

(b below)

(i) The object of the

transplant

Attractiveness of transplant in

form and substance

Stopping or influencing un-

derlying ideas

(ii) The transplant

process

Deficient law making process

and influence of private parties

Challenging ideas and power

imbalances

(iii) The dynamics in

the transplant coun-

try

Anti path dependency and

power dynamics

Improving resilience of legal

system

(a) Determinants for the occurrence of malicious legal transplants

As we have seen, the object of a legal transplant can be legal rules, legal ideas or other

elements of the legal system.75 Thus, the starting point for the following discussion is

whether particular objects of transplants are more likely to be of a malicious nature. The

subsequent discussion of the transplant process is related to the previous analysis why

legal transplants occur.76 Finally, we consider the dynamics in the transplant country as

it was shown that the relationship between groups of society was often an important el-

ement in previous examples of malicious legal transplants.77

(i) The object of the transplant

The object of the transplant can matter due to its form or its substance. Starting with the

formal characteristics, the malicious legal transplant can be due to its combination of

cultural and social factors. For example, in the scenarios of rules that stipulate racial

75 See Section 1 (a) (i), above. 76 See Section 1 (b) (i), above. 77 See Section 1 (a) (ii), above.

17

discrimination78 the precise legal text is less important than the spread of the underlying

ideology. The occurrence of the legal transplant is therefore due to the success of this

more general idea which, for example, can derive from the aim of one group of society

to impose its moral and ethical standards on the society as a whole.

It can, however, also be the case that the malicious legal transplant is due to the pre-

cise legal codification. This form of such a legal transplant can occur where something

which, originally, was a mere cultural norm has been codified by the origin country as a

generally applicable law. For example, this can happen when a religious practice be-

comes a legal rule which applies to the entire population including minority groups. Or,

it can concern the regulation of particular consensual sexual acts which, originally, were

merely seen as inappropriate.79 Subsequently, the codified rule can then easily be copied

by other countries.

The substance of the transplant can also play a decisive role. Here too the reasons

that account for the maliciousness of the transplanted legal idea can be the same ones

that contribute to its occurrence. In particular, this can happen where the attractiveness

of the idea is due to its detachment from reality. Such a case may be described as a situ-

ation where an idea ‘seems too good to be true’ – and indeed it is. For example, one

may think about the Nazi/Fascist belief that racial characteristics are correlated with the

virtue and character of human beings, or the view that sexual preferences are entirely a

matter of choice.80

Another attractive (as regards the transplantation) and malicious substantive factor

can be the radical nature of the transplanted law. For example, the appeal of Wahhabi-

based legal concepts in Indonesia may be explained by the way ‘actors use Saudi Arabia

to construct an imaginary ideal through which social and religious issues are contem-

plated and compared to apparent Indonesian “social corruption”’.81 This occurrence can

also be due to the fact that, following insight from diffusion research, simple ideas

spread more easily than complex ones.82 Here, thus, both the simplicity and the radical-

78 See the first example of Section 1 (a) (ii), above. 79 See the second and third examples in Section 1 (a) (ii), above. 80 See the first and third examples in Section 1 (a) (ii), above. 81 Chaplin, above n 23, p 217 82 See Section 1 (b) (iii), above.

18

ism are attractive features for law makers since they enable them to brand all critics of

the transplant as ‘heretics’.

(ii) The transplant process

Turning to the relationship between origin and transplant countries, the negative out-

come of malicious legal transplants appears to be counterintuitive: following the main

narrative about the benefits of regulatory competition, one would usually expect that

‘the best’ laws survive.83 Such a positive outcome would also be in line with the view of

a ‘Darwinian’ battle in a marketplace for good ideas.84

In this general debate there is, however, also the view that regulatory competition can

lead to a ‘race to the bottom’.85 This can also be relevant for legal transplants since – as

in law making more generally86 – mistakes can happen in the transplantation of ideas.87

For example, it is possible that the cost-saving advantage of a transplant88 leads to a

hasty adoption of a mistaken foreign model. It can also be the case that the law maker of

the transplant country misjudges the character of the law since it follows the general be-

lief that the laws from the origin country – say, a country of the same legal family with

a distinguished legal tradition – are worth adopting.89

More specifically, however, malicious transplantation are, at least from the perspec-

tive of one of the participants, the result of a deliberate process.90 Here, as the general

research on legal transplants has observed, the power relationship between the origin

and the transplant countries plays an important role.91 More specifically, the adoption of

the foreign idea can have the aim to create or foster an international alliance with the

83 For the debate see eg DC Esty and D Géradin (eds) Regulatory Competition and Economic Integration

(Oxford: Oxford University Press 2003). 84 See Section 1 (b) (iii), above. For the notion of a ‘marketplace of ideas’ and its shortcomings see also S

Poole Rethink: the Surprising History of Ideas (New York: Random House 2016). 85 This phrase was coined by WJ Cary ‘Federalism and Corporate Law: Reflections Upon Delaware’

(1973-1974) 83 Yale Law Journal 663. 86 See eg R Baldwin, M Cave and M Lodge Understanding Regulation (2nd edn, Oxford: Oxford Univer-

sity Press 2012) pp 68-82, on regulatory failures. 87 Suggested by Carolan, above n 5. 88 See Section 1 (b) (i), above. 89 Ibid. (countries often choosing the ‘most legitimate model’). 90 See Section 1 (a) (i), above. 91 Ibid.

19

origin country.92 There can also be financial incentives, for example, where the trans-

plant country agrees to follow certain rules of the origin country in exchange for foreign

aid supporting its education, health care etc.93

In addition, private interests often play a crucial role.94 Self-interested and strategic

law makers may deliberately make use of malicious rules. Such legal rules may also be

supported by powerful self-interested transnational groups, such as multi-national cor-

porations, religious organisations and political movements. Moreover, it can be a de-

terminant that powerful private groups from the origin country successfully lobby for

their position in the transplant country,95 for example, aiming to reduce transaction costs

or to establish cultural hegemony,96 depending on the preferences of the group in ques-

tion.

(iii) The dynamics in the transplant country

Understanding the dynamic within the transplant country is crucial since, conventional-

ly, one would assume that law is path-dependent: thus, in the present scenario, the ex-

pectation would be that countries retain their existing law and do not adopt ideas from

abroad – and even less so if those are of a malicious nature.

However, there can be forces that overcome such path-dependencies. It is often said

that law makers may have a ‘pro-innovation bias’, namely that ‘anything new’ is per-

ceived as ‘better than what has gone before and that adoption is more worthy of study

than non-adoption or rejection’.97 A more specific rationale for malicious legal trans-

plants can be that adopting those is in line with a general legal trend. For example, it

may be argued that the adoption of conservative Islamic laws in countries in Africa and

Asia is a continuation of the struggle to fully ‘decolonise’ from Western ideas.

It is, however, not only the force of such imagined views of modernity or identity

that plays a role within the transplant country. It can also be the case that even rational

92 See the first example in Section 1 a (ii), above. 93 See the second example in Section 1 a (ii), above. 94 For private interest theories of regulation see eg B Morgan and K Yeung An Introduction to Law and

Regulation (Cambridge: Cambridge University Press 2007) pp 43-53. 95 For both see the second example in Section 1 (a) (ii), above. 96 See Section 1 (b) (i), above. 97 Greenhalgh et al, above n 62, p 10.

20

actors accept dubious ideas.98 In the current context, such a situation can often arise

when the interests of private parties are a decisive factor for the adoption of the mali-

cious legal transplant. For example, a particular legal idea may be supported by power-

ful private groups (businesses, political parties, religious organisations etc) of the trans-

plant country who use the foreign ideas in a strategic way in order to successfully lobby

for their position.

In addition, reasons of political economy often play a crucial role. In the power dy-

namics within the transplant country the foreign idea can be a useful rhetorical tool to

support a particular line of reasoning. A frequent scenario, as evidenced by the exam-

ples,99 is that a majority group uses such an argument for the oppression of a country’s

minorities. Such a situation may be most likely in illiberal democracies since the ma-

jority does not face corresponding accountability of its power. But there can be other

situations too. For example, in non-democratic societies the adoption of the foreign idea

may have the aim to use such ideas to suppress political opponents.100 It can also be the

case that in a liberal democracy certain electoral rules contribute to a malicious legal

transplant: for example, assume a situation where in a country with a first-past-the-post

system a party wins the elections without having won the support of the majority of the

population. Subsequently this party uses its power to entrench its position by way of

disenfranchising parts of the population, say, through rules of racial segregation. Mali-

cious legal transplants are therefore possible in any political system.

(b) How malicious legal transplants can be prevented

Before addressing the question how malicious legal transplants can be prevented, it is

important to consider which entities and persons may, in principle, be able to do so. The

challenge is that, depending on the type of transplant,101 the state powers of both the

origin and the transplant country may be the perpetrators in question. However, this sec-

tion will suggest that prevention is, at least in some circumstances, possibly by three

broad groups. First, third countries and international organisations can try to exert influ-

98 Boudon, above n 65. 99 See all three examples in Section 1 a (ii), above. 100 Possibly this was the case in the first example in Section 1 a (ii), above. 101 See Section 1 a (i) and (b) (i), above.

21

ence on the origin and transplant countries. Second, within the origin and transplant

countries societal forces can play a role: thus, citizens, companies and interests groups

can try to prevent malicious legal transplants. Third, the current law makers of the

origin and transplant countries can try to influence the decisions of future law makers,

for example, directly through constitutional rules or indirect through changes of societal

conditions. The following will elaborate on these means of prevention, based on the

structure of the previous sub-section, thus dealing with the object of the transplant, the

transplant process and the dynamics in the transplant country.

(i) The object of the transplant

The most direct way to prevent a malicious legal transplant would be to stop it at its ori-

gins. In principle, it may be possible to pursue such a strategy; however, as will be

shown, it can also be problematic or ineffective.

In some cases, third countries and international organisations may want to intervene

in the origin country. For example, the situation indicated in the first example102 ended

with the defeat of Nazism and Fascism in the Second World War. Of course, it did not

eliminate racist ideas – and military campaigns would not be feasible for each spread of

a malicious idea. Economic sanctions are another means at the international level. A

law-based strategy that some third countries can pursue is to have laws with extraterrito-

rial effects in order to hinder the flow of certain ideas. For example, a country where

particular social media companies (Twitter, Facebook etc) are located can regulate their

standards with effect to other countries.103

The inherent problem is that, while in extreme cases, international or third-country

intervention may be justified, in principle, the national sovereignty of the origin country

needs to be respected.104 Practically, it may also be said that any such measure cannot

102 See Section 1 a (ii), above. 103 For the discussion see eg JM Moringiello and WL Reynolds ‘The New Territorialism in the Not-So-

New Frontier of Cyberspace’ (2014) 99 Cornell Law Review 1415; Symposium issue on Extraterritoriali-

ty and EU Data Protection International Data Privacy Law (2015) 5(4). 104 This is a frequent objection against laws with an extraterritorial effect; see eg J Kirshner ‘Why is the

U.S. Abdicating the Policing of Multinational Corporations to Europe?: Extraterritoriality, Sovereignty,

and the Alien Tort Statute’ (2012) 29 Berkeley Journal of International Law 259.

22

fully eliminate malicious legal transplants: indeed, malicious ideas do not seem to die

but are frequently re-born, as the history of racist ideas exemplifies.105

Related possibilities and problems are likely for activities by the other two groups

that can react to the object of a malicious legal transplant. The societies of the origin

and transplant country can try to oppose the idea. In addition, following from the deter-

minants of occurrence identified in the previous section,106 it is not only the idea that

matters but also its codification, abstraction and radicalisation which citizens, interest

groups and other constituencies of society can oppose. The problem is that the scenarios

discussed here are about situations where the law makers of the countries support the

idea. So in liberal democracies the precise boundaries of legitimate powers of minority

groups need to be identified,107 while in other regimes the main question is whether ef-

fective political campaigns against the wishes of the government are possible at all.108

Current law makers trying to prevent malicious decisions of future law makers can

directly address the idea in question. For example, law makers in some countries crimi-

nalise certain opinions, symbols and publications, say, in order to prevent the (re-)

emergence of racist ideas.109 A more indirect strategy can, for instance, concern changes

to the national school curriculum or other questions of school and university education.

But here too the ideas may continue to exist underground. Moreover, at least in liberal

societies, it would usually be expected that law makers are accountable to society and

do not try to shape society’s views according to their preferences.

Overall, this shows the limited means of fully stopping a particular malicious idea.

More promising are ways to influence ideas and how they evolve into a possible object

of a malicious legal transplant, though this too is certainly not an easy endeavour. It also

goes beyond the scope of what legal scholars usually consider in their research as it re-

quires an understanding of the cultural and societal determinants and dynamics underly-

ing malicious ideas.

105 See GM Fredrickson Racism: A Short History (Princeton, NJ: Princeton University Press 2002). 106 See Section 2 (a) (i), above. 107 Eg, in terms of free speech or the right to public protest; see eg D Mead The New Law of Peaceful Pro-

test (Oxford: Hart Publishing 2010). 108 See eg L Chua ‘Pragmatic Resistance, Law, and Social Movements in Authoritarian States: The Case

of Gay Collective Action in Singapore’ (2012) 46 Law & Society Review 713. 109 See eg MJ Bazyler ‘Holocaust Denial Laws and Other Legislation Criminalizing Promotion of Na-

zism’ GPN Genocide Year in Review 2009, available at www.ihgjlm.com/wp-

content/uploads/2016/01/Holocaust-Denial-Laws.pdf.

23

(ii) The transplant process

A common feature of interventions in the transplant process is that it challenges the

success of the malicious ideas. This approach, therefore, follows the spirit that ‘little can

be borrowed, but much can be learned, from foreign law’110 – and that indeed ‘even ap-

parently vicious and disingenuous ideas can lead to illuminating rebuttal’111 and that

foreign ideas too may be used to show what should not be done.112 Of course, some-

times a transplant already occurred in the distant pasts, for example, the colonial trans-

plants,113 but even here such information can be useful as it can lead to the reversal of a

particular foreign and ‘malicious’ legal idea.

More specifically, for third countries and international organisations the main ap-

proach may be to present benevolent counter-models that weaken the malicious idea. In

such a ‘battle of ideas’, therefore, ‘applied comparative law’114 becomes relevant. In

line with a modern contextual understanding of comparative law it is important to con-

sider how far the contextual differences across countries influence the suitability or un-

suitability of foreign ideas.115 Such considerations also play a crucial role for the way

international organisations such as the UN and the World Bank influence the choice of

legal rules at a global scale.116

Another problem to consider is the frequent power imbalance between the origin and

the transplant country.117 Thus, politically and/or economically, the transplant country

may feel that it has no choice but to follow the stronger origin country. Here, then, third

countries and international organisations can try to prevent, or reverse, malicious legal

transplants by way of directly challenging the views of the origin country or providing

110 E Rubin, ‘Administrative Law and the Complexity of Culture’ in A Seidman, R Seidman and J Payne

(eds) Legislative Drafting for Market Reform: Some Lessons from China (Hampshire: Macmillan 2000) p

108. 111 S Poole, ‘Why bad ideas refuse to die’, The Guardian, 28 June 2016, available

www.theguardian.com/science/2016/jun/28/why-bad-ideas-refuse-die. 112 Called ‘negative fertilisation’ by Cohn, above n 44. 113 See the third example in Section 1 a (ii), above. 114 See Siems, above n 15, pp 22-23, 192-193. 115 See above n 2. 116 See eg Trebilcock and Mota, above n 51, pp 7-12, 78-80 and Section 1 (b) (i), above. 117 See the second example in Section 1 a (ii), above, as well as 1 (b) (i) and 2 (a) (ii), above.

24

support to the weaker transplant country so that it becomes easier to withhold the pres-

sure of the origin country.

With respect to societal forces, it depends on the country in question to what extent

society can influence the transplant process. It was already mentioned that businesses,

lobby groups, and religious organisations can be a driving force behind malicious legal

transplants.118 Thus, such groups may, in some cases, also be able to channel the content

and form of the transplant in a positive direction.

How far current law makers should prospectively provide guidance on choices of

foreign models has recently become relevant in the US. The state of Oklahoma attracted

considerable attention by explicitly prohibiting state courts from considering ‘the legal

precepts of other nations or cultures’ specifically mentioning international law and Sha-

ria Law; other states have passed or are debating measures with similar intentions.119

The apparent threat is that such a generic position in the search for good legal ideas is

based on prejudiced views about certain foreign laws. Thus, it is suggested that for judi-

cial comparative law it is preferable to provide judges with the training and tools in or-

der to enable them to make an informed choice of solutions adopted by courts elsewhere

in the world.120 Likewise, for legislators, the appropriate guidance is that law makers

should conduct wide consultations on diverse foreign models in order to make the right

choices.

As a result, it can be seen that there are some means to intervene in the transplant

process: third countries and international organisation can challenge malicious ideas and

power imbalances, and societal groups of the transplant country (including legal schol-

ars) can try to shape the political debate. Details on their success depend on the power

relationship between the relevant organisations, states and groups – akin to other re-

118 See Section 2 (a) (ii), above. 119 For the debate see eg S Islam ‘The Negative Effects of Ill-Advised Legislation: The Curious Case of

the Evolution of Anti-Sharia Law Legislation into Anti-Foreign Law Legislation and the Impact on the

CISG’ (2013/14) 57 Howard Law Journal 979; PM Venetis ‘The Unconstitutionality of Oklahoma’s SQ

755 and Other Provisions Like it that Bar State Courts from Considering International Law’ (2011) 59

Cleveland State Law Review 189. 120 E Mak Judicial Decision-Making in a Globalised World (Oxford: Hart Publishing 2013). See also

Gelter and Siems, above n 12.

25

search about the relationship between law and politics, for example, on the possible in-

fluence of ‘subaltern’ forces in the age of globalisation.121

(iii) The dynamics in the transplant country

Since the transplant country often tends to be politically or economically weak in com-

parison to other countries, it seems possible for third countries or international organisa-

tions to attempt to influence the transplant country’s choice of models. As noted in the

previous sections, reasons of national sovereignty may provide a counter-argument, but

it can also be said that ‘meddling’ in the transplant country’s affairs is justifiable as far

as the aim is to prevent a malicious transplant from another country. For example, if

Saudi influence pressurises countries to introduce rules that discriminate against non-

Muslims,122 third countries can try to diffuse this pressure, for example, through bar-

gaining about investment treaties or foreign aid.

One may also hope that the society of the transplant country would have a strong

voice preventing malicious legal transplants:

‘Free speech has tools to manage the flow of ideas. Ideally you want to encour-

age the spread of good ideas and discourage the spread of bad ones. Free socie-

ties rely on their ability to isolate, ostracize, boycott, ignore, not read, not pass

on, social exclusion, and marginalization to prohibit the spread of bad ideas.’123

This suggestion assumes an active position of citizens in the way ideas – including legal

ones – are chosen. Moreover, it is premised on the condition that free speech is suffi-

ciently protected in the society in question. It is therefore likely that liberal democracies

are less often subject to the malicious legal transplant than other political systems.

More generally, a number of further observations can be made for the way the cur-

rent law maker of the transplant country can influence the dynamics of the transplant

country in the future. Law makers may provide special protection of particular values,

121 For the latter see eg B de Sousa Santos and CA Rodriguez-Garavito ‘Law, Politics, and the Subaltern

in Counter-Hegemonic Globalization’ in B de Sousa Santos and CA Rodriguez-Garavito (eds), Law and

Globalization from Below: Towards a Cosmopolitan Legality (Cambridge: Cambridge University Press

2005), pp. 1-26. 122 See the second example of Section 1 a (ii), above. 123 Blog Post ‘Should we create a Critical Idea Permeability Index?’ (10 July 2013), available at

www.thenakedscientists.com/forum/index.php?topic=48240.0.

26

thereby restricting future law makers. For example, in many countries, the constitutional

protection of human rights means that these rules can only be amended by future law

makers through special procedures. In addition, some countries’ constitutions contain

‘eternity provisions’ so that certain rules cannot be changed at all. Consider, for in-

stance, that the German constitution protects human dignity in such a way, based on the

explicit rationale to prevent a repeat of the Nazi atrocities.124

It also makes a difference how the law maker of the transplant country shapes the

structure of its political system. Apart from complete shifts in political models, changes

in detail matter too. The main examples of malicious legal transplants were about situa-

tions where law makers sided against particular groups of society.125 Thus, it is vital not

simply to provide majoritarian representation but rules that protect all members of soci-

ety. Depending on the society in question, this may, for example, mean strong minority

rights, mandatory participation of all groups in the government, a federal structure or

other multi-level participation rights.126

Consequently, it is not the case that the transplant country is necessarily helpless as

regards the risks of malicious legal transplants. The main lesson is that it is possible to

improve the resilience of the legal and political system. Of course, having a sound con-

stitutional structure is not merely relevant in order to prevent malicious legal trans-

plants; thus, it also shows that the debate about such design choices needs to balance

these and other policy considerations.

124 Article 1(1), 79(3) of the German Basic Law. For examples from other countries see JI Colón-Riós

Weak Constitutionalism: Democratic Legitimacy and the Question of Constituent Power (London

Routledge, 2012) p 67. 125 See Section 1 (a) (ii), above. 126 See eg M Mutua ‘The Iraq Paradox: Minority and Group Rights in a Viable Constitution’ (2006) 54

Buffalo Law Review 927. See also the discussion in regulation studies: eg, Baldwin et al, above n 86, pp

338-355, 373-387; Morgan and Yeung, above n 94, pp 221-280.

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3. CONCLUSION

Recent research on legal transplants has often been concerned with the undertaking to

choose and design legal transplants in an intelligent way.127 This research has a positive

dimension as far as it tries to identify how, technically, certain foreign rules can most

effectively be transplanted. However, it often also has a normative one as it tries to

promote transplants that work well and should therefore be suggested to law makers.

By contrast, the current article started with a normative issue – the idea that legal

transplants can be malicious – while it also had a positive dimension – exploring why

these transplants occur. In its main parts it suggested three paradigmatic examples of

such a transplant, discussed its research context, identified reasons for its occurrence

and presented ways in which such transplants can be prevented. Of course, there is no

‘silver bullet’ against malicious ideas and laws. Rather, any solution has to identify pre-

cisely at which stage and with which tools intervention in the determinants of the mali-

cious legal transplant is possible, for example, whether it is feasible to challenge the un-

derlying idea, to counter-act the pressure by the origin country or the influence the pow-

er dynamics within the transplant country.128

These suggestions to prevent legal transplants may sound out-of-date if we assume

that the legal world moves into the direction of a global convergence of legal sys-

tems.129 However, it was not the intention of this article to suggest that laws should nev-

er converge – as indeed it did not aim to suggest that legal transplants cannot also be a

tool for ‘better law’.130 As a recent book by the economic historian Deirdre McCloskey

explains, good ideas have been a major determinant for prosperity around the world.131

Good ideas can also be foreign ideas. There is no reason to believe that societies benefit

from intellectual isolation. Rather, it can be shown that foreign legal ideas may even be

127 See eg G Frankenberg ‘Constitutional Transfer: The IKEA Theory Revisited’ (2012) 8 International

Journal of Constitutional Law 563; H Xanthaki ‘Legal Transplants in Legislation: Defusing the Trap’

(2008) 57 International and Comparative Law Quarterly 659. 128 See Section 2 (b), above. 129 For the discussion see Siems, above n 15, pp 222-259. 130 However this may be defined. See M Siems, ‘Bringing in Foreign Ideas: The Quest for “Better Law”

in Implicit Comparative Law’ (2014) 9 Journal of Comparative Law 119. 131 DN McCloskey Bourgeois Equality: Ideas, not Capital or Institutions, Enriched the World (Chicago:

University of Chicago Press 2016).

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‘overfitting’ in the sense that they work better in the transplant country than in the coun-

try of origin.132

As a consequence, the choice and design of legal transplants is indeed crucial. This

requires knowledge and understanding of both the technical aspects of the transplant

and its normative implications. It also means that scholars of legal transplants need to

consider various fields of research such as comparative law, jurisprudence, law and reg-

ulation and law & development, as has been attempted in this article. It is suggested that

this makes such research a demanding but also a stimulating endeavour.

132 M Siems ‘The Curious Case of Overfitting Legal Transplants’ in M Adams and D Heirbaut (eds) The

Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke (Oxford: Hart Publish-

ing, 2014) pp 133-146.